stay out of jail: immigration compliance issues for employers glen m. krebs wyatt, tarrant &...

Stay Out of Jail: Immigration Compliance Issues for

Employers

Glen M. KrebsWyatt, Tarrant & Combs, LLP

250 West Main Street, Suite 1600Lexington, KY 40507

859/288-7409 or gkrebs@wyattfirm.com

Stay Out of Jail

• I-9 Compliance

Stay Out of Jail

• I-9 Compliance

• SSN Mismatch (No-Match Letters)

Stay Out of Jail

• I-9 Compliance

• SSN Mismatch (No-Match Letters)

• E-Verify

Stay Out of Jail

• I-9 Compliance

• SSN Mismatch (No-Match Letters)

• E-Verify

• Undocumented or improperly documented workers – Employer Sanctions

Stay Out of Jail

• I-9 Compliance

• SSN Mismatch (No-Match Letters)

• E-Verify

• Undocumented or improperly documented workers – Employer Sanctions

• ICE Raids

I-9 Compliance

• Section 1 completed at time of hire

I-9 Compliance

• Section 1 completed at time of hire

• Verification docs provided w/in 3 days

I-9 Compliance

• Section 1 completed at time of hire

• Verification docs provided w/in 3 days

• Evidence of current work authorization placed in reverification tickler system

I-9 Compliance

• Section 1 completed by employee at time of hire

• Verification docs provided w/in 3 days

• Evidence of current work authorization placed in reverification tickler system

• Section 2 completed by employer w/in 3 days of hire

I-9 Compliance

• Do not require specific documents or more than the law requires

I-9 Compliance

• Do not require specific documents or more than the law requires

• Retain forms for the appropriate time – later of: 3 yrs from date of hire or one year after termination

I-9 Compliance

• Do not require specific documents or more than the law requires

• Retain forms for the appropriate time – later of: 3 yrs from date of hire or one year after termination

• Use an adequate tickler system to reverify expiring work authorizations

Internal I-9 Audit

• Prepare list of employees hired after Nov. 6, 1986

Internal I-9 Audit

• Prepare list of employees hired after Nov. 6, 1986

• Separate out I-9 forms which no longer need to be maintained

Internal I-9 Audit

• Prepare list of employees hired after Nov. 6, 1986

• Separate out I-9 forms which no longer need to be maintained

• Assure that each employee has a form I-9

Internal I-9 Audit

• Prepare list of employees hired after Nov. 6, 1986

• Separate out I-9 forms which no longer need to be maintained

• Assure that each employee has a form I-9

• Review I-9 for completeness and technical mistakes and make proper corrections

Internal I-9 Audit

• If necessary, request appropriate documentation or reverify employability

Internal I-9 Audit

• If necessary, request appropriate documentation or reverify employability

• Recommend suspension for employee if verification or reverification cannot be completed in a reasonable time

Internal I-9 Audit

• If necessary, request appropriate documentation or reverify employability

• Recommend suspension for employee if verification or reverification cannot be completed in a reasonable time

• Prepare a file memo detailing results of audit and recommendations

Origin of No-Match

• In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match

Origin of No-Match

• In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match

• Employer has no “affirmative duty” to re-verify Employee’s work authorization

Origin of No-Match• In 1994 Social Security Administration

begins to issue letters to Employer notifying that name and SSN do not match

• Employer has no “affirmative duty” to re-verify Employee’s work authorization

• Knowingly employing undocumented workers vs. discrimination based on race or citizenship

DHS New Regulation

• August 15, 2007

• Upon receipt of no-match letter, Employer must check its records and correct if necessary

DHS New Regulation

• Upon receipt of no-match letter, Employer must check its records and correct if necessary

• Or, Employer must request the Employee to confirm the name and SSN– if incorrect Employer must make changes

DHS New Regulation

• Upon receipt of no-match letter, Employer must check its records and correct if necessary

• Or, Employer must request the Employee to confirm the name and SSN– if incorrect Employer must make changes– if correct, Employer must advise Employee to resolve

discrepancy within 90 days of receipt of no-match letter

DHS New Regulation

• If Employee cannot resolve the discrepancy within 90 days the Employer must– Re-verify the I-9 form within 93 days of receipt

of no-match letter

DHS New Regulation

• If Employee cannot resolve the discrepancy within 90 days the Employer must– Re-verify the I-9 form within 93 days of receipt

of no-match letter– Employer may not accept any document

which contains the old SSN

DHS New Regulation• If Employee cannot resolve the

discrepancy within 90 days the Employer must– Re-verify the I-9 form within 93 days of receipt

of no-match letter– Employer may not accept any document

which contains the old SSN– Employee’s identity must be confirmed by

document containing a photo

DHS New Regulation

• Compliance with these procedures will provide a “Safe Harbor” for Employers – they will NOT be deemed to have constructive knowledge that their Employees are undocumented

California District Court Enjoins Implementation – Oct. 10, 2007

• The court found that the American Federation of Labor, et. al. had demonstrated serious questions as to three of their challenges to the rule and therefore issued a preliminary injunction enjoining the implementation of the new regulation.

California District Court Enjoins Implementation – Oct. 10, 2007

• The court found that the American Federation of Labor, et. al. had demonstrated serious questions as to three of their challenges to the rule and therefore issued a preliminary injunction enjoining the implementation of the new regulation

• SSA decided not to issue any no-match letters until litigation is resolved

DHS Supplemental Final RuleOctober 28, 2008

• DHS’s consistent, if informal, view of SSA no-match letters has been that

DHS Supplemental Final RuleOctober 28, 2008

• DHS’s consistent, if informal, view of SSA no-match letters has been that– SSA no match letters do not, by themselves,

establish that an Employee is unauthorized

DHS Supplemental Final RuleOctober 28, 2008

• DHS’s consistent, if informal, view of SSA no-match letters has been that– SSA no match letters do not, by themselves,

establish that an Employee is unauthorized– There are both innocent and non-innocent

reasons for no-match letters, but

DHS Supplemental Final RuleOctober 28, 2008

• DHS’s consistent, if informal, view of SSA no-match letters has been that– SSA no match letters do not, by themselves,

establish that an Employee is unauthorized

– There are both innocent and non-innocent reasons for no-match letters, but

– An Employer may not safely ignore SSA no-match letters, and

DHS Supplemental Final RuleOctober 28, 2008

• DHS’s consistent, if informal, view of SSA no-match letters has been that– SSA no match letters do not, by themselves, establish that

an Employee is unauthorized

– There are both innocent and non-innocent reasons for no-match letters, but

– An Employer may not safely ignore SSA no-match letters, and

– An Employer must be aware of and comply with the anti-discrimination provisions of INA

WHAT NEXT ??

• Nobody knows

WHAT NEXT ??

• Nobody knows

• Prudent course of action is to implement actions described in the New Regulation

WHAT NEXT ??

• Nobody knows

• Prudent course of action is to implement actions described in the New Regulation

• But that is not necessary until the District Court’s injunction is lifted

E-Verify

• Best means available for employers to verify electronically the employment eligibility of their newly hired employees

E-Verify

• Best means available for employers to verify electronically the employment eligibility of their newly hired employees

• Does not verify immigration status

E-Verify

• Best means available for employers to verify electronically the employment eligibility of their newly hired employees

• Does not verify immigration status• Does not protect against workplace

enforcement, but does presume that employer did not knowingly hire unauthorized alien

E-Verify

• You can opt in or opt out at any time – the program is voluntary except for certain employers such as federal contractors

E-Verify

• You can opt in or opt out at any time – the program is voluntary except for certain employers such as federal contractors

• For more information:– www.dhs.gov/e-verify– 888-464-4218

Enforcement

• DHS – Secure Border Initiative (SBI)

Enforcement

• DHS – Secure Border Initiative (SBI)

• Civil Penalties

Enforcement

• DHS – Secure Border Initiative (SBI)

• Civil Penalties

• Criminal Penalties

Enforcement

• DHS – Secure Border Initiative (SBI)

• Civil Penalties

• Criminal Penalties

Secure Border Initiative

• First Phase – Multi-year plan to secure America’s borders and reduce illegal migration. Unveiled in Nov. 2005 with increased emphasis on audits and administrative enforcement (Walmart case)

Secure Border Initiative

• First Phase – Multi-year plan to secure America’s borders and reduce illegal migration. Unveiled in Nov. 2005 with increased emphasis on audits and administrative enforcement (Walmart case)

• Second Phase – April 2006. Simultaneously identify and remove criminals, immigration fugitives, and other immigration violators, “build strong worksite enforcement compliance programs”

Secure Border Initiative

• First Phase – Multi-year plan to secure America’s borders and reduce illegal migration. Unveiled in Nov. 2005 with increased emphasis on audits and administrative enforcement (Walmart case)

• Second Phase – April 2006. Simultaneously identify and remove criminals, immigration fugitives, and other immigration violators, “build strong worksite enforcement compliance programs”

• JUMBO BUFFET CASE

Secure Border Initiative

• Fiscal Year 2007 Results– ICE removed 276,912 illegal immigrants– Fugitive Op Teams up to 75 (18 in 2005)– Secured $30 million in fines from employers while

making 863 criminal arrests and 4,077 administrative arrests

– ICE ACCESS program launched to train local law enforcement to conduct immigration enforcement duties

Civil Penalties

• Hiring or Continuing to Employ Unauthorized Aliens– 1st Offense: $275 - $2,200– 2nd Offense: $2,200 - $5,500– 3rd Offense: $3,300 - $11,000

Civil Penalties

• Hiring or Continuing to Employ Unauthorized Aliens– 1st Offense: $275 - $2,200– 2nd Offense: $2,200 - $5,500– 3rd Offense: $3,300 - $11,000

• Failure to Properly Comply with I-9 Requirements– $110 - $1,100 per employee

Civil Penalties

• Unlawful Discrimination– 1st Offense: $250 - $2,000– 2nd Offense: $2,000 - $5,000– 3rd Offense: $3,000 - $10,000

Criminal Penalties

• Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens– May be fined up to $3,000 per employee or

sentenced for up to 6 months imprisonment

Criminal Penalties

• Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens– May be fined up to $3,000 per employee or

sentenced for up to 6 months imprisonment

• Engaging in Fraud or False Statements– May be fined up to $10,000 and imprisoned

for up to 5 years

Criminal Penalties

• INA 274 – Bringing in and Harboring – Up to $250,000 fine– Bringing in

• Up to 10 yrs in Prison– Transporting the employee to evade the law

• Up to 5 yrs in Prison (10 yrs if for financial gain)– Harboring, Concealing, Shielding, etc.

• Up to 5 yrs in Prison (10 years if for financial gain)

Criminal Penalties

• Encourages or induces to come in– Up to 5 yrs in Prison (10 yrs if for financial gain)

• Conspiracy (10 yrs.) or Aiding and Abetting (up to 5 yrs. in prison) the above

Criminal Penalties

• INA 277 – Aiding or Abetting the Bringing in of Known Illegal Aliens – Up to 10 yrs in Prison

Criminal Penalties

• Violations of INA Sections 274 and 277 (among others) constitute predicate offenses and may serve as the basis for prosecution under RICO. This includes criminal penalties and civil penalties including use by legal employees who were affected by violations of the INA or by competitors who lost out on contracts due to immigration violations.

Glen M. Krebs

Wyatt, Tarrant & Combs, LLP

250 West Main Street, Suite 1600

Lexington, KY 40407

(859)288-7409

gkrebs@wyattfirm.com